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M.S. Dakshina Murthy Vs. University of Mysore - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKarnataka High Court
Decided On
Case NumberW.P. Nos 9624 to 1926 of 1984
Judge
ActsKarnataka State Universities Act, 1976 - Sections 25, 25(2), 31 and 62
AppellantM.S. Dakshina Murthy
RespondentUniversity of Mysore
Appellant AdvocateV.K. Varadachari, Adv.
Respondent AdvocateH.K. Vasudeva Reddy, Adv. for R-1
DispositionPetition alllowed
Excerpt:
.....and no such power inherent unless it has the source of authority of law.;on the allegations that board of examiners, to whom 3 out of 5 answer papers were referred on grounds of wide disparity between marks given by external examiners and internal examiners also made an assessment in a liberal fashion, they were debarred for 5 years from examiner ship by decision of syndicate. question whether syndicate had power so to do having come up for consideration :;the power under clause (c) of sub section (2) of section 25 of the act, which states that the syndicate may change or remove the examiners, must be read subject to section 31 of the act. the power to change or remove cannot be part of the appointment process for appointment of' examiners, which entirely rests in the board for..........view to give them high ranks. thereupon, five answer papers of three students were referred to the board of examiners in accordance with the regulations in that behalf. what the regulations of the m.a. degree examination stipulates may be briefly stated as follows :-answer scripts of students who have taken m.a. degree in hindi or any other subjects in the masters' degree courses are first valued externally and then valued internally. then the average is taken and that constitutes the marks obtained by the concerned student or candidate. the regulation also provides where the marks differ in excess of 20 in the valuation of external and internal examiners, then those scripts be referred to the board of examiners.5. it was in that manner that 5 answer books of 3 candidates on the.....
Judgment:
ORDER

Chandrakantaraj Urs, J.

1. In these Writ Petitions the petitioners, two of them Readers and one a Lecturer in Hind' in the University of Mysore, aggrieved by the memos issued by respondent - 1 University of Mysore which are at Annexures F, F1 and F2, have challenged the legality of the same. Those memos as they are termed are dated 24-4-1984.

2. It is stated in the memos that pursuant to the report of the Vice-Chancellor on the enquiry into the allegations made against the candidates/persons mentioned therein and the decision of the Syndicate dated 6-8-1983 thereon, after examining the reply to the final show cause notices, they were kept out of the Examiner ship for a period of 5 years for giving room to suspect that there was liberal valuation in some cases. In Annexure-F the petitioner in W.P.9625/84 is penaalised, in Annexure-F1 the name of petitioner in W.P.9624/84 is mentioned and the memo at Annexure-F2 is couched in the same terms and the name shown therein is that of the petitioner in W.P. 9626/84.

3. From the very language used in all the three memos what has been imposed on them is a penalty is left in no doubt. Petitioners' contention is that the whole exercise resulting in Annexures F, F1 and F2 are without the authority of law and contrary to the rules of natural justice. In that circumstance, they have moved this Court under Article 226 of the Constitution praying for quashing Annexures F, F1 and F2 by issue of a Writ in the nature of certiorari.

4. The facts leading to these Writ Petitions may be briefly stated as follows :-

Petitioners were all examiners appointed in accordance with Section 31 of the Karnataka Universities Act (hereinafter referred to as 'the Act'), They were examiners for M.A.final Hindi examinations conducted in June 1982. It appears that some students complained to the Vice Chancellor that the internal examiner had manipulated the marks of some candidates with a view to give them high ranks. Thereupon, five answer papers of three students were referred to the Board of Examiners in accordance with the Regulations in that behalf. What the Regulations of the M.A. degree examination stipulates may be briefly stated as follows :-

Answer scripts of students who have taken M.A. Degree in Hindi or any other subjects in the Masters' degree courses are first valued externally and then valued internally. Then the average is taken and that constitutes the marks obtained by the concerned student or candidate. The Regulation also provides where the marks differ in excess of 20 in the valuation of external and internal examiners, then those scripts be referred to the Board of Examiners.

5. It was in that manner that 5 answer books of 3 candidates on the complaint made by some of the students were referred to the Board of Examiners. It turned-cut that the Board of Examiners, among whom two of the petitioners were, found that the answer scripts deserve more or less the marks given by the internal valuer and therefore awarded certain marks which exceeded the marks obtained by the concerned candidates on external valuation.

6. Thereafter, the Controller of Examinations of the respondent-1 University framed charges against the petitioners in the following manner :-

'There is an allegation that as an internal examiner and as Member of the B O E. you gave very high marks to many candidates in general and to three candidates in particular (namely Sriyuths : S. Chidambara, S. T. Ramachandra and M. A. Mahendra) to such an extent as to raise their marks, class and rank, and give them undue advantage.

You will be given all reasonable opportunity to defend yourself against this allegation. You may send in a written reply to this statement of allegation on or before 25th October 1982, if you so desire. You are also requested to appear before the Malpractices, Lapses Enquiry and Discipline Committee for an oral hearing at 2. 30 p.m. on Monday the 25th October 1982 at the Syndicate Chambers, University of Mysore, Mysore-570005'.

7. It is not in dispute that the charges are identical in respect of all the three petitioners. From a reading of the charges it is clear that it is not their duty as Members of the Board of Examiners that they have been found fault with. It is their internal assessment which is the subject matter of the charge though it is claimed that it relates to their duties and functions as Members of the Board of Examiners. It is so because, admittedly only papers of three candidates numbering five answer scripts were referred to the Board of Examiners in accordance with the requirement of the Regulations because the difference of the marks in their cases was in excess of 20 between the external and internal valuations. Therefore, the imputation that they had in respect of all candidates had given liberal marks in order to favour them, does not appear to be an accurate charge.

8. More to this aspect, it is next seen from the charge extracted above that they have been given all reasonable opportunity to defend themselves against the allegation. They were required to send a written reply to the statement of allegation on or before 25/10/1982 if they so desired. They were further required to appear before the Malpractices, Lapses Enquiry and Discipline Committee (hereinafter referred to as the Malpractices Committee') for an oral hearing at 2.30 p.m. an 25/10/1982 at the Syndicate Chambers. University of Mysore, Mysore.

9. That they have sent explanations and they have appeared before the Malpractices Committee is not in dispute. A true copy of the proceedings of the Malpractices Committee is also produced by the petitioners at Annexure-B. From a reading of this annexure it is seen that one of the Members and the Chairman of the Committee called each one of the Board of Examiners who were charge-sheeted as also the internal examiner and recorded the statements. The only material with which the petitioners appear to have been confronted with is the marks tally sheets of external valuation, internal valuation and the valuation made by the Board of Examiners. For instance in a particular case, it is seen that one Chidambaram, in the II paper obtained 47 marks in the external valuation and 75 in the internal valuation and 70 in the Board's valuation. Similarly, in the Vth paper he obtained 56 in the external assessment, 77 in the internal assessment and 71 in the Board's assessment. Similar is the pattern in respect of the other two candidates. The question addressed is how they made this assessment in such a liberal fashion showing such wide disparity between external assessment and the Board's assessment.

10. It is nobody's case that contemporaneous records were maintained when the Board of Examiners met for the assessment of the answer scripts of the three candidates referred to therein. The Board consisted of M. S. Krishna Murthy (petitioner in the second Writ Petition), M. S. Dakshina Murthy (petitioner in the first Writ Petition) and one Smt. Malti Tandon, Lecturer. The last mentioned member of the Board of Examiners is not before this Court.

11. A perusal of she report of the Malpractices Committee signed by the Chairman and a Member, a copy of which is at Annexure-B, provides a stellar example of what an enquiry of that nature ought not to have been. Each one of the Members of the Board or Examiners has teen called and asked to make a statement beyond the material with which they have been confronted. There was nothing else put to them. None of the students who are said to have made the complaint to the Vice-Chancellor their statements or their complaints were provided to the petitioners. From the statements recorded from each of the petitioners it is clear that on account of the Code system employed, petitioners or any member of the Board could not have come to know to whom the answer - script belonged. If that is so, without knowing the author or candidate of the concerned answer scripts, how the Board of Examiners would, in order to favour a particular candidate, liberally mark him in such a manner as to give such advantage of high ranks, is beyond my comprehension. It was never the charge that the petitioners were guilty of breaking the Code system and knowing the candidates. No such imputation is found in the charge - sheets. Strangely enough, no witness is examined nor subjected to cross-examination. In the conclusion they have stated that Sri V. D. Hegde, the internal examiner has given very high marks to the three students involved. But, a look at the internal assessment of all the 12 candidates, everyone has been given high marks and even internal valuation is subject to the Code system confidentially by which he could not have made-out to which candidate he was giving higher marks. If that is so, how the Malpractices Committee came to the conclusion that those three students had been favoured specifically on the motive of those students having supported some staff agitation is also beyond this Court's comprehension.

12. That there was an agitation by the staff and in that circumstance the students supported the agitation of the staff was not the subject matter of the change. In other words, impression formed by the Court on a perusal of Annexure-B is that it is not only perverse and capricious but totally unrelatable to the charge, if it is a charge at all.

13. I have pointed-out that the charge is too vague and mixed - up. Even though only five answer scripts of three students were referred to the Board of Examiners, one gets the impression as if the entire answer scripts of all the students were referred to the Board of Examiners, The accusation is against all while admittedly only one internal examiner Sri V. D. Hegde, Lecturer in Hindi, had given very high marks. How the other two are responsible is also beyond this Court's comprehension. There is no allegation of conspiracy made-out in the charge.

14. The cumulative effect of all this is that the entire exercise appears to have been directed against these three petitioners with oblique motives, which are not known to the Court, to victimise them. But. when there is no specific charge, no material, no imputation, no cross-examination and no examination of witnesses at all, much less an opportunity for cross-examination and the conclusions are all based on conjectures, it cannot be said, that fair opportunity had been given to defend even the vague charge that was framed against the petitioners.

15. The next step is to examine the provisions of the Act. Counsel for the University was unable to point-out under what provision of law the Syndicate assumed jurisdiction to punish the petitioners. A reading of the impugned memos indicate as if the Syndicate has exercised its power under Section 62 of the Act. It speaks of the Vice Chancellor's report, the opportunity given by the Syndicate, consideration by the Syndicate of the explanations offered by the affected petitioners and the passing of the memos thereafter. But, what is over-looked is Section 62 of the Act which provides for disciplinary control by the Vice-Chancellor and the action by the Syndicate on the report of the Vice-Chancellor in respect of students alone and does not include the examiners.

16. However, the Counsel drew my attention to the power of the Syndicate enumerated under Clause(c) of Sub-section (2) of Section 25 of the Act, which states that the Syndicate may change or remove the examiners. That power must be read subject to Section 31 of the Act The power to change or remove cannot be part of the appointment process for appointment of Examiners, which entirely rests in the Board for enabling appointment of Examiners constituted under Section 31 of the Act by the Syndicate.

17. Power to remove must be exercised properly. What has been done here is by the removal of the petitioners from Examiner ship under the impugned memos, a punishment is imposed debarring them from future Examiner ship, which is not the power spoken of under Clause (c) of Sub-section (2) of Section 25 of the Act.

18. It is presumable that a person appointed may be removed for misconduct by the Syndicate as a punishment But Syndicate here has only passed final order which is not based on any charge of misconduct against the examiners. The Malpractices Committee has been entrusted the task of holding the enquiry. From where the authority under the Act is derived in favour of the Malpractices Committee is not pointed-out. Even the Syndicate can delegate its authority to another only in respect of matters which are prescribed by ordinances made by the Syndicate. It is fairly submitted by the Counsel for the University that no ordinance is framed spelling-out those powers which could be delegated by the Syndicate. If there is no ordinance, then nothing could be delegated by the Syndicate. In this state of affairs, I am unable to see how the action could be sustained.

19. Penalty of debarring the Examiners is not a mere penalty which will cause loss of income by way of fee, but also casts a stigma on their career. It is stated that one of the petitioners is on the verge of being considered for promotion to the post of Professor and it has not been done on account of the pendency of these proceedings in this Court. That in itself evidences that the penalty imposed is in fact a stigma in the career of the petitioners.

20. In the totality of the circumstances, I do not think that there has been either a fair and clear charge made-out or proper enquiry conducted in conformity with rules of natural justice. Worse still, authority to punish the Examiners itself is in a state of flux so far as no specific provision is made and someone in the University appears to have exercised these powers. No such power could be inherent unless it has the source of authority of law.

21. If, on the other hand the Court were to assume that the memos resulted as a result of misconduct of service, then the framing of the charges, procedure of enquiry etc. should be in accordance with the Classification, Control and Appeal Rules applicable to University and not under any other provision, inherent or otherwise.

22. For the reasons and in the light of the above discussion, I have no hesitation to quash the memos at Annexures F, Fl and F2 as being without the authority of law and contrary to natural justice and accordingly they are quashed.

23. In the circumstances I have set-out, I think no useful purpose is served by reserving liberty to the University to proceed against the petitioners afresh particularly when no ordinances are framed and no specific Rules or Regulations are also framed to punish erring Examiners. Therefore, it is but fair to observe that in the constitution of future Board of Examiners and appointment of Examiners, which is a Committee to be constituted under Sub-section (1) of Section 31 of the Act, shall not take notice of the impugned memos which are now quashed, in future.

24. Subject to the above, these Writ Petitions are allowed and rule will issue and be made absolute.


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